Independent Medical Reviewers: Are They At It Again?
Under SB 863, the mandated application of Independent Medical Review (“IMR”) was intended to replace the slow, frustrating and unpredictable PQME process under Labor Code 4062, for the resolution of medical necessity issues, arising from utilization review decisions to delay, modify or deny medical treatment requests. IMR therefore represented both a logical and natural alignment between the utilization review process and the resolution of medical necessity disputes, removing from that decision pathway, both the doctors and the WCAB. Of course, every reform initiative seems to generate that old ghost nemesis, the “doctrine of unintended consequences,” as the applicant’s bar wrests with strategies designed to test, and even defeat, some of the intended reforms of this era.
It has come to our recent attention and probably yours as well, that some of the applicant attorneys are now devising new forms of “creative mischief” in not only challenging the IMR process but also in adding elements to the mixture which are likely to cause much confusion, and yes, more litigation. The mischief usually starts with a “notice letter” from the applicant’s attorney, challenging the validity of your UR process and then asserting that the WCAB retains the right to intercede, in order to adjudicate the invalidity issues and hence either overrule or sidestep IMR, with a direct WCAB order for the contested subject medical care. Often, they will either threaten a DOR for Expedited Hearing or actually file one with the WCAB.
Another approach is to put you on notice that they contest the invalidity of the UR process, or reserve the right to do so. This is based upon some claimed breach, lateness or failure to comply with the emergency regulations in place, but while doing so, they still pursue not only the IMR process (if they like the result, then that’s it) at the same time trying to get to Expedited Hearing. There, they would ask for the WCAB to intervene with an order for the contested care, upon a finding that the UR process is deemed invalid due to non-compliance.
And to complete the barrage, some creative practitioners may also launch a “second missile” which is a demand for the “other” IMR process, imbedded within the MPN statutes. This puts a separate IMR process “in play.”
While we know that the “game is only beginning,” set forth below is a brief summary of some of the unfolding strategies being tested and currently deployed:
CIRCUMVENTION OF IMR BY ASKING THE WCAB TO ORDER CONTESTED MEDICAL TREATMENT AT EXPEDITED HEARING
I have seen letters from several applicant attorneys putting us on “notice” that they are contesting the “validity” of the Utilization Review process by claiming procedural deficiencies and “checking” numerous reasons for their objections or simply providing a “list of reasons” supporting the objections. But the underlying message is that they are contesting the UR process was properly applied. The grounds and reasons span the regulatory time frames and documentation gamut, but the common objections are:
- UR decision is untimely made
- UR decision is late communicated to physician
- UR decision is late communicated to applicant
- UR decision is defective because the claims administrator did not make a non UR denial within 5 days of receipt of RFA
- UR decision is beyond scope of reviewer’s practice
- UR reviewer is not a licensed California physician
- UR decision is incomplete. E.g. it does not contain the attached documents required, or it fails to state certain required information, including the date RFA was received, date decision was made, etc.
- UR decision is inconsistent with the MTUS or is not supported by proper medical criteria
- Form IMR was not attached to the UR decision or is incomplete in some other respect, including the addressed envelope to Maximus
The attorney notice then threatens a DOR for Expedited Hearing. Some attorneys are citing the case of Corona v. Los Aptos Christian Fellowship (SAL 0117839), which is nothing more than a 2012 WCAB panel decision, for the proposition that the applicant can challenge a UR decision (and hence the IMR procedures) before the WCAB, in addition to going through the IMR process.
This WCAB panel decision, which is neither citable nor binding on anyone, pre-dated the IMR process initiated under SB 863. In this case, the WCAB held that if the applicant wanted to contest a UR determination, he or she had to initiate the Labor Code 4062 PQME process, but could also maintain a challenge to the utilization review deficiencies by expedited hearing.
What we don’t know is whether the same argument now permits the applicant to file for Expedited Hearing on a procedural challenge to UR, as a pre-condition or preemptive challenge to IMR. Can a WCAB Judge order the IMR process invalid? Can a WCAB Judge issue a suspension order for the IMR review process? Or can the WCAB simply order the contested care upon finding one or more procedural defects or deficiencies in the UR process?
Please remember the current SB 863 IMR process (not the IMR found in the MPN statutes for contesting diagnosis and treatment) specifically removes medical necessity issues form the hands of the physicians and the WCAB, except under very limited appeal challenges. Applicant’s attorneys, who cite this case, are ignoring the provisions of Labor Code 4610.5(e), which indicate that a UR decision may be reviewed or appealed only by independent medical review pursuant to this section. The only “remedy” here is the UR decision being overturned by IMR.
According to the statute, the effect of providing faulty notice to the injured worker or the doctor is that the running of the IMR is delayed until notice compliance is made. What is less clear is how one “puts the milk back in the bottle” if the UR decision was untimely in the first place. This piece of the puzzle is probably the seed from which we will be seeing considerable litigation and WCAB decision making in the near future.
Bottom line: I can see where applicant attorneys could demand that the AD and Maximus put the IMR review process “on hold” while the WCAB conducts a hearing on the invalidity issues of UR. The problem here is there is no rule making for such a scenario, and the IMR process actually falls within the purview of the AD, not the WCAB, so if there is any hearing to be had, I would argue that such an invalidity of process hearing actually has to take place, if at all, before the AD, not the WCAB. That any “invalidity” issue is the same as “eligibility:” and that the arbiter is the AD and not a WCAB Judge. The WCAB would only get involved if the AD first rules on validity and someone appeals to the WCAB.
AS THE IMR PROCESS IS TAKING PLACE UNDER LAB C 4610.5, LAUNCHING THE 2ND AND 3rd
OPINION AND IMR PROCESS UNDER THE MPN STATUTES
Here, some applicant attorneys are even initiating a second and independent IMR, through the provisions of Labor Code 4616.3 and 8 CCR 9768.9. This is bound to cause confusion as we would in effect, have two IMR tracks running at the same time. In other words, applicant attorneys would be objecting to the diagnosis, diagnostic service or treatment prescriptions of their own MPN based PTP or treating physician, thereby demanding the “2nd” and “3rd” opinions provided. This means the applicant gets a 2nd opinion and possibly a 3rd opinion, which presumably could cover the same contested medical issue being run through your 4610.5 IMR track.
And then the “big question” – What happens when the Maximus Federal Services IMR reviewer upholds the UR denial but the IMR reviewer in the MPN process approves the treatment after the 2nd and 3rd opinion?
If you read both statutes side-by-side, the IMR process within each would seem distinctly different and therefore without “crossover.” But, you can expect applicant attorneys may argue that they could cross over because the Form RFA requires a diagnosis to be stated and the procedure requested. This would seem to potentially encompass the broader category of disputes over “treatment prescribed” by the PTP, as set forth under Lab C 4616.3. Therefore, by going down both tracks, applicant attorneys might decide that if they “hit” on either the IMR under 4610.5 or within the IMR under the MPN statute, 4610.3, that either medical opinion would support the requested treatment.
So, in effect, we could be facing a situation where we prevail under the IMR process on a specific procedure requested (ICD/CPT) under Lab C 4610.5, but face an adverse finding from a 2nd or 3rd opinion physician under the MPN based IMR, or from the IMR reviewer and hence the presence of potentially “dueling opinions.”
CHALLENGING THE UR PROCESS IF THE UR REVIEWER IS NOT A LICENSED CALIFORNIA PHYSICAN
The contention here is that if the UR reviewer is not a licensed California physician, then he or she cannot render an opinion on medical necessity because that opinion is the equivalent of practicing medicine in California. This argument is presented by referring to the Medical Board of California, and their recent determination that utilization review decisions constitute the practice of medicine, because the UR decisions made either by a medical reviewer or a medical director “directly impact” the treatment.[i]
Applicant’s attorney may therefore direct a challenge to the UR decision and contest its viability, contending that only the WCAB can be the arbiter over that dispute, and hence a DOR is filed for Expedited Hearing.
According to my review of the statutes and the emergency regulations under 8 CCR 9792.6.1(w) “reviewer” is defined as “a medical doctor, doctor of osteopathy, psychologist, acupuncturist, optometrist, dentist, podiatrist, or chiropractic practitioner, licensed by any state, including Washington, D.C. and who is competent to review the subject clinical issues within their scope of practice.”
While it is likely this issue could grow in scope, right now it would seem that a good “counter argument” is that if the reviewer is out of state, that doctor qualifies as a reviewer under our IMR regulations, provided her or she is licensed in the state where the review is taking place and within the scope of his or practice. Since the reviewer is not consulting directly with the patient, is not giving face-to-face or even telephonic medical advice, but is only applying establishing treatment protocols against an RFA, I would urge that that doctor is not practicing medicine in California. Even if that is practicing medicine, it is not practicing medicine in California.
Another argument is that if you have a California based Medical Director, and that physician reviews, adopts and supports the decision by the out-of-state reviewer, and signs the decision as well, than this should cure any potential issue over the licensure issue.
ADVICE: You may want to have your California Medical Director add a paragraph to the UR determination that the UR reviewer is qualified to render the opinion, within the stated scope of practice, is a licensed physician in the state of ______, but that the Medical Director has reviewed and is adopting and incorporating that decision within California.
I am also seeing yet another potentially emerging practice, where the applicant attorney, having signed on as the advocate for the injured worker in the IMR process, is then directing a letter to Maximus Federal Services, demanding information about the physician reviewer, including their gender, age, sexual orientation, religious affiliation and more. Whether they are entitled to this information “before the fact” is highly questionable, but of course this demand for information, before IMR takes place and prior to any later assertion of bias, throws yet another “wrench” into the works. I can even see some attorneys sending in “bias probing interrogatories” asking for even more delving and private information about the reviewer(s).
Right now, we don’t know whether these practice tactics are simply “testing the legal waters.” or really represent an effort to delay, deter or defeat IMR. The fact that these practices seem to be emerging, would tell me that someone seems worried that the IMR process is taking hold, otherwise why bother?
I would recommend that if you are considering taking one of these issues to trial, then you attempt to select a case where the UR process has been undertaken timely and completely. Therefore, you don’t present a case with “the wrong facts.”
Yes, it is a cliché. But we need to stay tuned as the games have seemingly just begun.
–Enjoy your summer.